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Overcharging conspiracy
It is routine for military prosecutors to overcharge in courts-martial. They feel the more they can pile on the worse it makes the accused look. So that’s why you might see a charge of murder along with a charge of spitting on the side-walk.
One of the areas of frequent abuse is the use of inchoate crimes – primarily here conspiracy. The Army Court of Criminal Appeals has just issued an opinion in a case I defended at trial a couple of years ago. The case was tried in 2012, and the first stage of appeal was decided in February 2015. The next stage is CAAF.
In United States v. Willis, we had objected at trial to a conviction on multiple conspiracies, but the trial judge denied our motion. The prosecution had it’s way in overcharging on this issue. But that didn’t pass muster with the appeals court. In ruling for the defense the court repeated basic principles.
Bilged by a marine
Another of my ongoing noting of civilian cases which reference or rely upon military appellate decisions. I do this partly because it is an example of transparency and why it is needed in the military. When using Lexis or other search functions you are going to come up with military cases – if you have the access.
In Wilson v. United States, No. 13-CM-564, (D.C. Court of Appeals, 6 November 2014), the appellant sought reversal based abuse of discretion in failing to suppress evidence gained after an illegal arrest.
The court denied the appeal, and in the process cited United States v. Marine, 51 M.J. 425 (C.A.A.F. 1999) to support its decision. Yes, the accused in Marine was a marine.
IAC by not filing motions
Can a failure to file a pretrial motion equal ineffective assistance of counsel? The BLUF is yes in some cases. In some instances I have argued IAC on appeal for failing to make a meritorious motion. The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue. The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King. The issue of IAC for failure to raise a pretrial motion is neither novel nor rare. Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion. I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges. A more common issue is a motion to suppress, or speedy trial, or UCI.
- Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
- Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
Providence shines down or upon
No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.
Oh, sorry. Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.
The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial. The MJ gave him a BCD and 8. ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.
A new trial gained
For client Sgt Brown, with the assistance of his military defense lawyer we have secured a dismissal of some charges and a new trial on the remainder. In United States v. Brown, the NMCCA issued an opinion on 30 June 2014, which addressed three of eight errors we raised: multiplicity of charges, validity of a false official statement, and improper use of character evidence which substantially prejudiced the defense. Because of the court’s resolution of these errors they did not address the remaining five.
The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside. Charge II and its sole specification (false official statement) are dismissed with prejudice. A rehearing on the remaining charges is authorized.”
1. On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). ”
An appeals court cannot take judicial notice of an element of the offense
The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page). The granted issue was:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).
BLUF: We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.
The new privilege for victim-advocates does not apply
The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date? Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause. See Calder v. Bull, 100 U.S. 1 (1798).
Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
In the Supremes
In addition to oral argument in Vazquez (link to argument here), the court issued several opinions of relevance to military trial and appellate practitioners: what are the “rules” and standards for IAC in regard to pretrial negotiations.
Lafler v. Cooper and Missouri v. Frye.
the Court vacated the decision of the Court of Appeals of Missouri and remanded the case for further proceedings. By a vote of five to four, the Court held that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.” Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.
In the NMCCA (Walker DP)
The NMCCA has issued a published opinion in United States v. Walker. This case began its appellate life with a death penalty sentence.
In 2008, this court issued an opinion, United States v. Walker, 66 M.J. 721 (N.M.Ct.Crim.App. 2008), in which we affirmed one of the findings of guilty to violating Article 118, UCMJ, except for the language “with premeditation,” set aside the finding of guilty to the armed robbery specification, and affirmed the findings of guilty for the remaining charges and specifications. We set aside the sentence and authorized the CA to hold a rehearing on the armed robbery and the excepted language as it pertained to the one murder specification, and on sentencing. Id. at 757. At the conclusion of the findings rehearing, a general court-martial composed of officer and enlisted members found the appellant guilty of armed robbery and premeditated murder. The appellant was sentenced for all of his offenses to confinement for life, a dishonorable discharge, reduction to pay grade E-1, and a reprimand.
I take this to be Life, not LWOP; which NMCCA has affirmed.